Federal Court of Australia

Hutchins, in the matter of Ardenberg Pty Ltd (in liq) (Administrators Appointed) (No 2) [2020] FCA 1424

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 14.24 of the Federal Court Rules 2011 (Cth), the remuneration of the first plaintiffs in acting as receivers and managers of the property, assets and undertaking (the trust assets) of The Robson and Bennet Family Trust for the period 7 March 2018 to 31 July 2019 be fixed in the amount of $898,573.55 (inclusive of GST).

2.    The remuneration fixed in accordance with Order 1 be paid out of the trust assets and, if they are insufficient, from the property of the second plaintiff, but the remuneration must not be paid in priority to any debt owed to the third to eighteenth defendants the payment of which is secured by the trust assets or the property of the second plaintiff (including by any circulating interest) without prior written consent of those defendants.

3.    These orders be entered forthwith.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J:

Introduction

1    On 7 March 2018, the first plaintiffs were appointed as liquidators of the second plaintiff, Ardenberg Pty Ltd (in liquidation) (Ardenberg) following events of default under a deed of company arrangement.

2    Ardenberg is the trustee of The Robson and Bennet Family Trust (the RB Trust). It does not own assets other than in its capacity as trustee of the RB Trust. Moreover, it has only traded in that capacity.

3    On 16 March 2018, the Court appointed the first plaintiffs as receivers and managers of the property, assets and undertaking of the RB Trust, with a power of sale. The receivership continues.

4    By interlocutory application dated 11 February 2020 (the remuneration application), the first plaintiffs seek remuneration pursuant to r 14.24 of the Federal Court Rules 2011 (Cth) for their work in the period 7 March 2018 to 31 July 2019 fixed in the amount of $978,384.55. There are two components. The first plaintiffs seek $42,472.10 in respect of their work in the period 7 to 15 March 2018, prior to their formal appointment as receivers and managers. The balance is in respect of their work following their appointment as receivers and managers.

5    While the first plaintiffs have acted in two capacities—liquidators of Ardenberg and receivers and managers of the property, assets and undertaking of the RB Trust—as a matter of substance their work has been directed to carrying on the trust business (for a period of time) and realising the trust assets.

6    Given Ardenberg’s only role and function has been to act as trustee of the RB Trust and to carry on the trust business, I am persuaded that the work carried out by the first plaintiffs as receivers and managers effectively commenced from 7 March 2018 and that they are entitled to remuneration accordingly.

7    The first plaintiffs’ application for remuneration is supported by the following affidavits:

(a)    Jason Bing-Fai Tang, affirmed 29 November 2019;

(b)    Jason Bing-Fai Tang, affirmed 7 February 2020;

(c)    Jina Alikozay, affirmed 23 March 2020; and

(d)    Jason Bing-Fai Tang, affirmed 4 June 2020.

8    Mr Tang’s November 2019 affidavit includes a Remuneration Report. According to Mr Tang, this is a modified form of report that he would usually prepare when seeking remuneration approval from creditors or any committee of inspection. The affidavit also includes detailed time sheets.

9    The first plaintiffs also rely on the following affidavits as providing background information in relation to the receivership:

(a)    Jason Bing-Fai Tang, affirmed 15 March 2018;

(b)    Jason Bing-Fai Tang, affirmed 13 August 2018;

(c)    Radek Kolman, sworn 15 November 2018;

(d)    Jason Bing-Fai Tang, affirmed 25 March 2019; and

(e)    Jason Bing-Fai Tang, affirmed 3 September 2019.

10    Mr Tang is one of the first plaintiffs. He has been primarily responsible for the conduct of the liquidation of Ardenberg and the receivership of the RB Trust. He has directly supervised the staff at his firm, Cor Cordis, working on the liquidation and the receivership.

Some Background matters

11    On 30 April 2020, orders were made which provided for notice to be given of the present application to interested persons. Orders were also made requiring the first plaintiffs to file written submissions in support of their application. An opportunity was provided for any person wishing to be heard on the application to also file written submissions.

12    Prior to this time, the first plaintiffs had already given notice of their remuneration application to a number of interested parties, including Mr Paul Robson who was served on 2 December 2020 with a Notice of intention to apply for remuneration and Mr Tang’s November 2019 affidavit, which sets out the basis for the remuneration that is sought. The Notice of intention to apply for remuneration was adapted from Form 16 in the Federal Court (Corporations) Rules 2000 (Cth), which applies equally to liquidator’s and receiver’s remuneration, and sought notification of objections to the remuneration application within 21 days of service.

13    I mention Mr Robson in particular because he is the sole director of Ardenberg as well as a contributory and creditor. He is the guardian and appointer of the RB Trust and a named beneficiary. He is also the first defendant in this proceeding. Mr Robson has appeared at certain case management hearings while this proceeding has been in my Docket.

14    At a case management hearing on 27 March 2019, Mr Robson sought to agitate a number of complaints or concerns he had about the conduct of the receivership. At that time I explained that I would not deal with these complaints or concerns in an informal way and that, if he wanted to pursue them, Mr Robson would need to proceed by way of a substantive application so that the Court had before it a properly articulated legal dispute. I suggested that he obtain legal advice. Counsel for the first plaintiffs informed me that the first plaintiffs had received an email the day before (26 March 2019) listing a number of queries that Mr Robson had raised. Counsel said that the first plaintiffs would respond to those queries and that if, after that response, Mr Robson continued to have complaints or concerns, he could make whatever application he wished to make to the Court, “with or without legal advice”. No application was made.

15    At a subsequent case management hearing on 4 September 2019, I was informed by counsel then appearing for the first plaintiffs that the first plaintiffs had not “received any correspondence from Mr Robson in many months, since the last case management hearing”. Further, Mr Tang’s affidavit of 3 September 2019 was before me: see [9(e)] above. It contained a letter to Mr Robson dated 30 August 2019 responding to the complaints or concerns that Mr Robson had raised in his earlier email.

16    Following the case management hearing on 30 April 2020, the first plaintiffs filed comprehensive written submissions dated 4 June 2020. No other person has filed submissions or raised an objection to the remuneration application. The orders made on 30 April 2020 included an order that the remuneration application “be dealt with on the papers or as the Court otherwise directs”. When the matter came before me for case management on 29 June 2020, the first plaintiffs did not indicate that they wished to be heard orally. Proceeding on the basis of the 30 April 2020 orders, I reserved judgment on the remuneration application and adjourned the proceeding pending judgment being given.

Relevant principles

17    A convenient summary of the principles to be applied is found in In the matter of Say Enterprises Pty Ltd [2018] NSWSC 396 at [6], where Brereton J set out the following propositions (citations omitted):

(1)    A receiver is entitled to the costs, charges and expenses properly incurred in the discharge of the receiver’s ordinary duties, or in the performance of extraordinary services that have been sanctioned by the Court.

(2)    The ultimate question is what amount of remuneration is ‘reasonable’, and this involves considering whether the work in respect of which remuneration is claimed was reasonably undertaken in the due course of the receivership, and whether the amount claimed for it is a fair and reasonable reward for it. The objective is to award a sum or devise a formula which will reasonably and fairly compensate the receiver for the time and trouble expended in the execution of his or her duties and the responsibility he or she has assumed.

(3)    The receiver bears the onus of justifying the reasonableness and prudence of the tasks undertaken for which remuneration is sought, and the reasonableness of the remuneration claimed for them.

(4)    Remuneration may be allowed on the basis of a fixed salary, a commission on receipts, or a quantum meruit having regard to the time, trouble and responsibility involved. It is a matter for the Court to determine what basis is appropriate in the particular case, having regard to the principle that the remuneration must be reasonable.

(5)    If a time-based approach is adopted, the Court is guided by professional scales of charges, with emphasis on the broad average or general rate charged by persons of the relevant status and qualifications who carry out the relevant type of work. The Court will usually act on time sheets created in the receiver’s office, provided that they do significantly more than merely detail the total number of hours spent by the receiver and officers of particular grades on his or her staff.

(6)    By analogy, the task involves consideration of the matters referred to in Corporations Act, s 425(8), which applies to receivers appointed under an instrument, namely:

(a)    the extent to which the work performed by the receiver was reasonably necessary;

(b)    the extent to which the work likely to be performed by the receiver is likely to be reasonably necessary;

(c)    the period during which the work was, or is likely to be, performed by the receiver;

(d)    the quality of the work performed, or likely to be performed, by the receiver;

(e)    the complexity (or otherwise) of the work performed, or likely to be performed, by the receiver;

(f)    the extent (if any) to which the receiver was, or is likely to be, required to deal with extraordinary issues;

(g)    the extent (if any) to which the receiver was, or is likely to be, required to accept a higher level of risk or responsibility than is usually the case;

(h)    the value and nature of any property dealt with, or likely to be dealt with, by the receiver;

(i)    whether the receiver was, or is likely to be, required to deal with:

(i)    one or more other receivers; or

(ii)    one or more receivers and managers; or

(iii)    one or more liquidators; or

(iv)    one or more administrators; or

(v)    one or more administrators of deeds of company arrangement;

(j)    the number, attributes and behaviour, or the likely number, attributes and behaviour, of the company’s creditors;

(k)    if the remuneration is ascertained, in whole or in part, on a time basis:

(i)    the time properly taken, or likely to be properly taken, by the receiver in performing the work; and

(ii)    whether the total remuneration payable to the receiver is capped;

(l)    any other relevant matters.

7    Many of those factors — in particular, pars (d)–(e) and (g)–(h) — have as their unifying theme the concept of proportionality (being the relationship of the work done and the remuneration claimed to the value of the estate), which is an important consideration in determining reasonableness.

8    It will rarely be appropriate for a Judge to review a decision of a Registrar on remuneration on an item-by-item basis.

9    In respect of disbursements, no Court approval or specific order is necessary in the absence of a challenge, although receivers should scrutinise them to ensure that they are reasonable and properly payable, and the Court has an inherent jurisdiction to review receivers’ disbursements as they are officers of the Court. However, a receiver may seek a direction that he would be justified in paying certain disbursements in order to obtain prior protection in respect of such a disbursement.

18    When considering the reasonableness of claimed remuneration, the question of proportionality is important. In Templeton v Australian Securities and Investments Commission [2015] FCAFC 137; 108 ACSR 545 (Templeton), the Full Court said:

[32]     The question of proportionality in terms of the work done as compared with the size of the property or activity the subject of the insolvency administration or the benefit or gain to be obtained from the work is an important consideration in determining overall reasonableness: see In the matter of AAA Financial Intelligence Ltd (in liq) [2014] NSWSC 1004 at [18] and [19] per Brereton J, In the matter of AAA Financial Intelligence Ltd (in liq) (No 2) [2014] NSWSC 1270 at [35], [36], [43] and [45] per Brereton J, Mirror Group Newspapers plc v Maxwell [1998] 1 BCLC 638 at 645651and 652 per Ferris J (also reported at [1998] BCC 324), In the matter of On Q Group Ltd (in liq) [2014] NSWSC 1428 at [20] per Brereton J, Bank of Nova Scotia v Diemer [2014] ONCA 851 at [33], [45], [55] and [56] per Pepall JA, Re Roslea Path Ltd (in liq) [2013] 1 NZLR 207 at [108], [115] and [121] per Heath and Venning JJ, Brook v Reed [2012] 1 WLR 419 at [51], [86] and [87] per Richards J, referring to the relevant 2004 UK Practice Statement [2004] BCC 912, Re Korda; Re Stockford Ltd (2004) 140 FCR 424 at [47] per Finkelstein J, although we do not endorse his Honour’s obiter observations on the “lodestar“ methodology as being the required approach as distinct from merely one practical way to proceed in a particular case.

[33]     Generally, in looking at proportionality, the value of the services rendered must be considered. We would endorse the observations of McLure JA in Conlan as liquidator of Rowena Nominees Pty Ltd (in liquidation) v Adams (2008) 65 ACSR 521 at [47] where her Honour observed:

    As to the performance of a task reasonably embarked upon, the work done must be proportionate to the difficulty or importance of the task in the context in which it needs to be performed. This is what is encompassed in assessing the value of the services rendered. Using an example from the law, the time spent by an appropriately qualified and experienced practitioner in drafting a statement of claim should be proportionate to the amount in issue.

[34]     Finally, even if one was not to address proportionality as an express factor, nevertheless its absence may have forensic significance in determining reasonableness. Another way to look at proportionality can be to conclude from a lack of proportionality between the cost of the work done relative to the value of the services provided that there has been overcharging or excessive remuneration claimed (see Thackray v Gunns Plantations Ltd (2011) 85 ACSR 144 at [64] per Davies J).

(Emphasis in original.)

19    At [52], the Full Court observed:

[52]     More generally, in considering the question of proportionality one also has to bear in mind two other points that may be overlooked. First, in performing some work, it may not be entirely clear ex ante what the precise benefit might be. A situation where work was being performed to preserve property of known value is quite different to the situation where work was being performed to achieve a return to creditors that was unclear. In the latter case, it might be inappropriate to use a hindsight analysis of known returns after the event to assess whether the work performed was proportional to the task; in such a situation one would look at the expected realistic return at the time the work was performed rather than actual outcomes. Second, some work may be sufficiently complex and labour intensive such as to justify a cost/benefit ratio of 6/10. After all, if the duty of the Receivers is to maximise returns and it is necessary to spend $0.60 to achieve $1.00, then proportionality is satisfied even if the ratio might be high.

(Emphasis in original.)

20    Reference should also be made to the discussion of principles by Bathurst CJ in Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liquidation) v Sakr [2017] NSWCA 38; 93 NSWLR 459 at [48] – [60]. I note in particular Bathurst CJ’s observation at [57] that the mere fact that the work performed does not lead to an augmentation of the funds available for distribution does not mean that there is no entitlement to remuneration for the work performed.

The realisation of trust assets

21    At the time of the first plaintiffs’ appointment as liquidators, and then as receivers and managers, Ardenberg’s principal activity was conducting a supermarket business from premises at 18 Maritana Street, Piccadilly, Western Australia (the Maritana Street property). The Maritana Street property was one of the assets of the RB Trust. Another asset was property at 102 Brookman Street, Kalgoorlie, Western Australia (the Brookman Street property).

22    In March 2018, the first plaintiffs engaged Colliers International and GMO as selling agents. They prepared a joint sales and marketing proposal for the sale of the supermarket business, the Maritana Street property and the Brookman Street property.

23    In relation to the supermarket business and the Maritana Street property, the proposed strategy was to sell the business and the property separately with a condition on the sale of the business that the purchaser enter into a lease of the property so that it could be sold as an income-producing asset with an existing tenant. The advice received by the first plaintiffs was that, if tenanted with an estimated net rental of $240,000 per annum, the Maritana Street property would have an estimated sale value of between $2.4 million to $2.6 million. However, if untenanted, the property would be worth much less—between $0.8 million to $1 million. Further, if the supermarket business was closed immediately, it would take between three to nine months to re-let the property.

24    Further, the sales proposal provided by Colliers International and GMO stated that the sale process for the Maritana Street property would take about four to six weeks after commencement.

25    Based on this advice, the first plaintiffs decided to continue to trade the supermarket business for the relatively short period anticipated, rather than closing it down immediately.

26    In around July 2018, the first plaintiffs received an offer to acquire the supermarket business. The offer was subject to finance. By mid-August 2018, the first plaintiffs were informed that finance could not be obtained. Later that month, they received a second offer, which was not subject to finance. After a period of negotiation a business sale agreement was entered into on 20 September 2018. Completion of the sale was delayed on several occasions as a result of difficulties faced by the purchaser entering into supplier contracts. The sale was finally completed on 8 November 2018, at which time the purchaser entered into a lease of the Maritana Street property. However, following completion of the business sale agreement, a dispute arose in January 2019, which was subsequently resolved by entry into a deed of settlement on 29 March 2019.

27    Following the sale of the supermarket business (much later than expected), the first plaintiffs commenced their marketing campaign for the sale of the Maritana Street property. The campaign concluded on 19 December 2018, with four potential purchasers identified. As events transpired, the only offer received was one involving an option. The option was negotiated in January and February 2019, and entered into on 25 February 2019. It expired on 8 April 2019. In May 2019, further offers were received including an offer to purchase the property for $1 million. This was less than originally anticipated. On 28 May 2019, the ANZ bank, as secured creditor, consented to a sale in accordance with that offer. A contract for sale was entered into on 18 July 2019. After some delay, settlement occurred on 6 August 2019.

28    With respect to the Brookman Street property, Burgess Rawson was engaged as selling agent on 3 April 2018. From June 2018, the first plaintiffs negotiated with a proposed purchaser. At the same time, they sought the consent of the tenants to have their leases registered on the title. One tenant refused to provide consent. By March 2019, the proposed purchaser withdrew its offer because not all the tenants would agree to have their leases registered. The Brookman Street property was not sold during the period for which the first plaintiffs claim remuneration, although it continued to receive rental income.

Assessment of the claimed remuneration

29    The first plaintiffs seek remuneration on a time cost basis. In his November 2019 affidavit, Mr Tang deposes that a time cost basis is appropriate because of the difficulty in providing any meaningful estimate, or any cap, on the costs that were to be incurred in realising the assets. In their written submissions, the first plaintiffs argue that the Court should accept this basis for calculating remuneration because a large part of the work involved continuing to trade the supermarket business so that it could be sold as a going concern, with no certainty as to the length of time the trading would continue.

30    I am satisfied that this is a case where the determination of remuneration on a time cost basis is warranted and appropriate. I also accept that the time sheets that have been provided are sufficiently detailed to enable an assessment of the work that was undertaken; that the rates charged are appropriate; and that there is no reason to think that times have not been accurately recorded.

31    There are, however, two adjustments that should be made.

32    First, Mr Tang’s evidence is that the time recording process was periodically reviewed to ensure that only reasonable and necessary time was charged. He gave this evidence in his November 2019 affidavit:

28.    During the Relevant Periods, I worked with Mr Kolman (who is a senior manager) and Mr Garcia (who was a manager and has since left Cor Cordis) on the receivership of the RB Trust, and I note the following:

(a)    Each month, they reviewed the time sheets of the various staff members. This included a review of time entries of staff members on a line-by-line basis to assess the reasonableness of time charged and that the records are accurate.

(b)    The time entries were also reviewed in June 2018, October 2018 and August 2019, for the purpose of preparing remuneration reports. The process for reviewing time entries for the purpose of preparing those remuneration reports was generally as follows:

(i)    The senior manager or manager generated a draft remuneration report and reviewed the narrations and time entries recorded by staff members and considered whether the amounts recorded were necessary and reasonable.

(ii)     Once they had satisfied themselves that work that had been performed and the time charged was necessary and reasonable, the draft remuneration report was submitted to me for review.

(iii)     As part of my review of the draft remuneration report, I specifically considered the number of hours attributed to each Work Category and the way that the work had been distributed amongst the various staff members, and I also formed the view that the amounts recorded and work performed, as referred to in the remuneration report, were necessary and reasonable.

In the course of performing these reviews, work that I did not consider was reasonable and necessary was reallocated to 'general office' file. Based on Cor Cordis' time recording system, it is not now possible to ascertain how much work was reallocated in this way.

33    I draw attention to the last paragraph of this quotation concerning the first plaintiffs’ inability to identify how much work was reallocated to the “general office” file.

34    The state of the evidence is such that I cannot be confident that an appropriate amount has always been reallocated to account for such matters as duplicated work or work necessitated solely by “handover” or “educative” tasks as between staff members involved in the receivership. For example, the time sheets reveal apparent instances of duplication:

(a)    the time entries for Mr Tang and Mr Garcia on 7 May 2018 indicate that they both spent time, apparently separately, liaising with the first plaintiffs’ solicitors regarding capital gains tax issues;

(b)    the time entries for Mr Pan on 22 and 27 June and 10 August 2018 suggest that multiple invoice registers were kept by different staff and were required to be merged from time to time; and

(c)    the time entries for Mr Lavan on 12 July and 1 August 2018 indicate that he spent time reviewing payslips and wage runs prepared by Mr Pan, a staff member of the same level of seniority.

35    Given the absence of any record of the time reallocated, or any general description of the work that was reallocated and the reason why it was reallocated, it would be appropriate to apply a small, general discount to the amount claimed as remuneration.

36    Secondly, the time sheets disclose some instances of what appears to be administrative work involved in continuing to trade the supermarket business which, seemingly, could have been carried out at a lower charge out rate. In this regard, I note that, while the Cor Cordis rates sheet includes rates for individuals at the “senior administration” and “administration” levels, neither the Remuneration Report nor the time sheets disclose the involvement of any individual at those levels. Some work in the time sheets referable to trading the supermarket business appears to have been of an administrative nature that could have been performed by less senior staff. For example, I refer to the following entries:

(a)    updating schedules of employees with BSB and account numbers (entry for Mr Richards at a rate of $340 per hour, on 14 March 2018);

(b)    printing, scanning and emailing documents (for example, entries for Mr Pan, at a rate of $420 per hour, on 26 March 2018 and 24 May 2018);

(c)    entering supplier invoices into “Sol 6” (entries for Ms Lie, at a rate of $295 per hour, on various dates) and entering invoices and payments into an invoice register (entries for Mr Pan, at a rate of $420 per hour, on 5 and 8 October 2018); and

(d)    entering employee time sheets into a payroll system (entry for Ms Lie, at a rate of $295 per hour, on 11 September 2018).

37    For this reason, it would also be appropriate to apply a small discount to the amount of remuneration claimed with respect to trading the supermarket business.

38    I have considered the question of proportionality by reference to the four broad categories of work against which time costs were recorded: IGA Business (the first plaintiffs’ reference to trading and selling the supermarket business); Collins Property (the first plaintiffs’ reference to selling the Maritana Street property); Brookman Property (the first plaintiffs’ reference to selling the Brookman Street property); and General Trust Asset Time (the first plaintiff’s reference to a general category of work not specifically related to the earlier three categories). Mr Tang provides a more ample description of the work in each category in his November 2019 affidavit. Once a category was identified, time costs were then recorded against one of six task areas: Assets; Creditors; Employees; Trade On; Investigation; and Administration. These task areas are also described in Mr Tang’s November 2019 affidavit.

39    It is convenient to consider IGA Business and Collins Property together because of the realisation strategy in respect of the two trust assets and the decision to continue to trade the supermarket business to optimise its sale value and the sale value of the Maritana Street property.

40    The remuneration claimed in respect of the Collins Property category is $44,833.25. Most of this ($39,441) has been allocated to the Assets task area, relating to the sale of the property. The much more substantial sum of $748,010.45 is claimed in respect of the IGA Business category. The total remuneration sought in respect of the combined categories is $792,843.70.

41    The recoveries in respect of the Collins Property category comprise the land value component of the sale of the Maritana Street property ($333,333.34) and the rent collected between the sale of the supermarket business and the sale of the property itself ($160,875).

42    The recoveries in respect of the IGA Business category comprise directly attributable recoveries of $599,641.03 (trading profits of $349,641.03 and proceeds from the sale of the supermarket business of $250,000) and indirectly attributable recoveries of approximately $666,666.66 (being the estimated additional proceeds from the sale of the Maritana Street property tenanted).

43    The total recoveries attributable to the two categories is, therefore, $1,760,516.03. The cost/benefit ratio in respect of the two categories is, therefore, 45.03%.

44    Mr Tang has provided a detailed explanation for this high ratio. As I have already noted, the sales strategy did not unfold as expected. The period of continued trading was longer than expected due to difficulties in realising a sale of the supermarket business. The Maritana Street property did not achieve the sale price that was expected. Indeed, the price was far less than expected.

45    These matters are only known by hindsight. It is important to bear in mind the Full Court’s statement in Templeton at [52] concerning the inappropriateness of engaging in a hindsight analysis of known returns rather than focusing on the expected realistic returns at the time the work was performed. In the present case, the first plaintiffs acted on advice in formulating and carrying out their sales strategy on which they were entitled to rely. They could not predict with certainty how the sales strategy would unfold. There is nothing in the evidence before me to suggest that there was a viable alternative strategy that, realistically, could have been pursued to better maximise the returns in the receivership.

46    Based on Mr Tang’s evidence, I do not doubt that a considerable amount of work was required of the first plaintiffs to continue to trade the supermarket business. I refer, in particular, to the description of work summarised in [67] – [68] of Mr Tang’s November 2019 affidavit. Mr Tang’s evidence also discloses that the first plaintiffs took steps to reduce the costs of running the business, such as by reducing the hours of trading to maximise profitability; implementing an online payroll system; promoting selected staff in the supermarket business so that they were given greater responsibilities in order to assist with the day-to-day on-site management of the business; and relieving Mr Robson of his engagement with Ardenberg as a subcontractor, thereby reducing costs. Further, where possible, more junior staff at Cor Cordis, with lower charge out rates, were used for the receivership work.

47    I am satisfied that the remuneration sought in respect of these categories of work is proportionate to the nature and complexity of the tasks involved, notwithstanding the relatively high cost/benefit ratio. Subject to the adjustments noted above, I am satisfied that this remuneration is reasonable.

48    As to the Brookman Property category, the amount of remuneration claimed is $77,488.95. The property is yet to be sold but the rent collected by the receivers is $344,530.30, resulting in a cost/benefit ratio of 22.5%. The first plaintiffs have endeavoured to sell the property using reputable brokers but their attempts to date have been unsuccessful.

49    I am satisfied that the work carried out by the first plaintiffs is proportionate to the nature and complexity of the tasks involved in connection with the work in this category and, subject to the adjustments noted above, is reasonable.

50    The General Trust Asset Time category includes, as I have noted, work not specifically related to any of the other categories. The remuneration sought for this work is $101,858.35, representing 11.16% of the total remuneration sought. The Remuneration Report prepared by the first plaintiffs shows that the greatest proportion of time was spent in respect of the Assets task area and included attending to insurance issues; determining the general sale process for the trust assets; liaising with solicitors and accountants in respect of capital gains tax implications; and preparing a forecast of funds from the sale of assets. Substantial time was also spent in respect of the Investigation task area, on account of legal matters that required liaison with the first plaintiffs’ solicitors and the ANZ bank. The remuneration sought covers a period of 15 months during which the first plaintiffs were required to address the application for their appointment as receivers; an unsuccessful application filed by Mr Robson to stay the winding up of Ardenberg and the receivership of the RB Trust (Hutchins, in the matter of Ardenberg Pty Ltd (in liq) (Administrators Appointed) [2018] FCA 1586); and the sale of multiple assets through different processes and of different timelines.

51    I am satisfied that the work carried out by the first plaintiffs is proportionate to the nature and complexity of the tasks involved in connection with the work in this category and, subject to the adjustments noted above, is reasonable.

Conclusion

52    The remuneration that is sought should be adjusted to provide for reasonable remuneration in accordance with the reasons above.

53    First, having regard to the matters identified at [36]-[37] above, the remuneration of $650,353 (inclusive of GST) sought in respect of continuing to trade the supermarket business should be reduced by 5% ($32,517.65).

54    Secondly, having regard to the matters identified at [34]-[35] above, the total remuneration (inclusive of GST) adjusted in accordance with [53] ($945,866.90 (inclusive of GST)) should be reduced by 5% ($47,293.35).

55    Therefore, the total remuneration for the first plaintiffs in the period 7 March 2018 to 31 July 2019 in respect of the receivership of the RB Trust should be fixed pursuant to r 14.24 in the amount of $898,573.55 (inclusive of GST).

Associate:

Dated:    2 October 2020

SCHEDULE OF PARTIES